Local Authority A v ZZ
[2023] EWCOP 61
A Local Authority v H (by her litigation friend, the Official Solicitor)
7 February 2023
[2023] EWCOP 4
Court of Protection
A young person with a difficult past and mental health issues was found by the court to not be able to make decisions for themselves about where they live or who they see, due to the risk they pose to themselves and others. To protect their privacy, the court kept their identity secret.
Key Facts
- •H is a young adult, natal male, identifying as female.
- •H has a history of significant trauma, including abuse and multiple foster placement changes.
- •H faces complex psychological and psychiatric challenges, including developmental trauma disorder and potential emotionally unstable personality disorder.
- •H has expressed a sexual interest in pre-pubescent children, leading to a police investigation.
- •H's liberty is restricted due to risk of harm to self and others.
- •H has shown significant progress under a restrictive care regime.
- •The court considered H's capacity in relation to residence, care, contact, and internet use.
- •Expert psychiatric evidence played a crucial role in the capacity assessment.
Legal Principles
Mental Capacity Act 2005 (MCA) principles regarding capacity assessment.
A Local Authority v RS (Capacity) [2020] EWCOP 29
Two-stage capacity assessment: (a) inability to make a decision; (b) whether inability is caused by impairment/disturbance of mind/brain.
A Local Authority v JB [2021] UKSC 52
Importance of identifying the precise matter and relevant information for the decision.
A Local Authority v JB [2021] UKSC 52
The court's role in determining capacity, considering evidence from various sources and avoiding paternalism.
Kings College Hospital NHS Foundation Trust v C [2015] EWCOP 80
Balancing of Article 8 (right to private and family life) and Article 10 (freedom of expression) rights in reporting restrictions.
R (oao Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 420 and Re S (a child) [2005] 1 AC
Outcomes
The presumption of H's capacity was rebutted.
Cogent evidence demonstrated H's inability to make capacitous decisions, particularly during periods of emotional dysregulation, in relation to all areas considered (residence, care, contact, internet use).
Reporting restrictions were implemented to protect H's identity.
Balancing H's Article 8 rights (privacy) against the public interest in open justice, the court prioritized H's vulnerability and safety.